Complying with Centers for Disease Control (CDC) guidelines limiting “nonessential” healthcare services during the COVID-19 pandemic, governors from several states throughout the country have issued executive orders identifying elective surgical abortion services as non-essential. Pointing out that elective abortion is actually “elective.” and thus nonessential, governors in Texas, Ohio, Alabama, Louisiana, Oklahoma, Indiana, Tennessee, Alaska, West Virginia, Mississippi, and Iowa have attempted to restrict access to the procedure during the current healthcare emergency.
Not surprisingly, pro-abortion advocates, including the World Health Organization (WHO), claim that any delay in a woman’s ability to terminate her pregnancy is just another example of the continued disparity in access to healthcare for women. Last week, a spokesperson for WHO issued a statement claiming that “services related to reproductive health are considered to be part of essential services during the COVID-19 outbreak . . . women’s choices and rights to sexual and reproductive health care should be respected.” Suggesting that “sexual and reproductive health care is integral to universal health coverage and achieving the right to health,” WHO continues its commitment to abortion on demand—even in the midst of a pandemic.
As in all debates over access to abortion, the courts have been called upon to decide whether elective abortion is indeed “elective.” And, as expected, the court decisions are varied. According to an updated interactive map on the Kaiser Family Foundation website, federal courts in Alabama, Ohio, and Oklahoma have all issued temporary restraining orders permitting clinics to continue providing abortion services. On April 12, the federal district court in Alabama issued a preliminary injunction, which allows providers to determine on a case by case basis if an abortion is necessary. The Sixth District Court of Appeals denied Ohio’s request to overturn the temporary restraining order. And on April 13, the Tenth Circuit Court of Appeals dismissed Oklahoma’s appeal, allowing surgical abortions in that state to continue.
Still, there have been some victories for those of us who wish to protect the unborn during a national crisis in which some women faced with unplanned pregnancies may feel they have no other option but abortion. In Texas, for example, the bans against elective abortion have been upheld by the state’s higher courts so far. A prolonged waiting period of a few weeks could make all the difference for these women. Still, the victories are tenuous and can be easily reversed, as happened after the governor of Texas issued an executive order on March 22, postponing nonessential surgeries and procedures until April 21. On March 30, a state district court issued a temporary restraining order allowing elective abortions to continue. A week later, however, the Fifth Circuit Court overruled the district court and upheld the governor’s original executive order, which had banned all elective abortion except for patients with pregnancies approaching 22 weeks—the legal limit in Texas. On April 11, abortion providers asked the Supreme Court to block the Fifth Circuit Court’s decision. In an attempt to head off another reversal, on April 13 the Fifth Circuit issued yet another new decision, this one allowing medication abortions to resume, thus circumventing the need for a Supreme Court ruling.
Beyond Texas, there have been other victories—and defeats—in the quest to protect the unborn. In Louisiana, the attorney general has threatened to shut down abortion clinics, claiming they have violated state directives on postponing elective medical and surgical procedures for 30 days—except for those necessary to treat an emergency medical condition or to avoid further harms from an underlying condition or disease. In response, on April 13 state abortion clinics filed a challenge in federal court in order to continue performing elective abortions.
Governors in Alaska, Tennessee, and West Virginia have also issued orders suspending or postponing abortion. Alaska’s governor updated his directive on April 7, specifying that healthcare providers must postpone surgical abortions, but leaving the door open to (non-surgical) medication abortion. In Tennessee, the governor issued an executive order suspending all “elective or non-urgent” procedures.
In some states, the orders are being defied. Although Mississippi’s governor issued an executive order requiring that all elective surgeries be suspended, and the attorney general declared that abortion services were banned in the state, according to the Kaiser Family Foundation abortions are still being provided at Mississippi abortion facilities. Kaiser notes that the same is the case with abortion clinics in West Virginia, despite the attorney general having asserted that abortion services were included in the state’s ban of elective medical procedures.
It is difficult to understand why providers would be so eager to rush women into abortion during such stressful times. The “sheltering-in-place” mandate has resulted in widespread isolation. Many Americans are unexpectedly unemployed, deprived of a social life—even our ability to worship has been curtailed. Financial concerns should never be a reason to end the life of an unborn child, but during this pandemic, some women may begin to believe that abortion is the only answer to an unexpected pregnancy. For these women, being “forced” to wait for an abortion until the end of the emergency “stay at home” period might result in a different outcome—on reflection, they might see that even in this extraordinarily disorienting time there are options to ending the lives of their unborn children. This is especially true if someone reaches out to help—someone who offers support and understanding to these women as well as practical assistance. Now, more than ever, crisis pregnancy centers are emerging as the “most essential” services of all.